| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Wellington |
| Reference No | [2012] NZERA Wellington 43 |
| Hearing date | 14 Nov 2011 - 15 Nov 2011 (2 days) |
| Determination date | 17 April 2012 |
| Member | J Crichton |
| Representation | T Kenney ; A Drake, R Childs |
| Location | Wellington |
| Parties | Hepburn v Huhtamaki Henderson Ltd |
| Summary | UNJUSTIFIED DISMISSAL – Serious Misconduct – Applicant claimed unjustifiably dismissed by respondent – Authority previously declined applicant’s interim reinstatement claim – Respondent manager (“S”) spoke to applicant about health issues and parties agreed applicant would take two weeks’ sick leave – Parties disputed how much information respondent had about applicant’s intentions during sick leave – Applicant used majority of sick leave for overseas trip – Respondent discovered emails on applicant’s computer from woman (“X”) of romantic nature that referred to applicant’s overseas trip and suggested applicant would be visiting X - Respondent questioned applicant’s use of sick leave and commenced investigation – Applicant claimed had travelled overseas to see friends – Respondent told applicant lost trust and confidence in applicant and unlikely employment would continue – Applicant dismissed – Applicant denied requested sick leave – S claimed applicant told S felt tired and struggling to deal with usual duties and spoke to manager (“M”) about applicant taking time off – Authority found M spoke to applicant about health and applicant requested sick leave – S and M denied aware applicant intended to travel to particular country (“Y”) – Found no evidence respondent aware applicant would be going to Y – Applicant claimed did not matter where was overseas and respondent aware generally applicant going overseas – Respondent claimed applicant misled respondent about use of sick leave – Applicant claimed respondent’s investigation predetermined – Found respondent conclusions not predetermined – Applicant denied in romantic relationship with X – Found applicant adequately informed of respondent’s allegations and given proper opportunity to respond – Applicant claimed respondent did not act fairly as did not encourage applicant to bring representation – Found applicant always assisted by appropriate support person during process – Found respondent’s process fair and reasonable – Found fair and reasonable employer could have concluded that applicant dishonest about sick leave and had misled respondent during investigation - Dismissal justified - UNJUSTIFIED DISADVANTAGE – Applicant claimed unjustifiably disadvantaged by respondent’s decision to cancel business trip when applicant returned from sick leave - Respondent requested applicant defer non-essential travel during investigation – Found no evidence applicant unjustifiably disadvantaged - Application dismissed - Regional Manager |
| Result | Applications dismissed ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s4(1A)(c);Privacy Act 1993 |
| Cases Cited | Air New Zealand v Sutherland [1993] 2 ERNZ 10;Angus v Ports of Auckland Ltd [2011] NZEMPC 160;Griffith v Sunbeam Corporation Ltd unreported, Couch J, 28 July 2006, WC13/06;BP Oil New Zealand Ltd v Northern Distribution Union [1992] 3 ERNZ 483;Vice-Chancellor of Massey University v Wrigley (2011) 9 NZELC 93,782;X v Auckland District Health Board [2007] ERNZ 66 |
| Number of Pages | 20 |
| PDF File Link: | 2012_NZERA_Wellington_43.pdf [pdf 97 KB] |